Les Green on law, philosophy, and some other passions

On Judicial Plagiarism

It is an open secret that judges sometimes plagiarize from submissions by the lawyers before them, and even from articles and books by academics. With respect to the latter, they are often aided and abetted by their clerks—law students working with them as research assistants.

Unlike scholarly or literary cheaters, the worry about judicial plagiarists is not that they undermine the research process, violate authors’ ‘moral rights’, or steal someone’s intellectual property. Judicial plagiarism is worse than any of these. It undermines the rule of law and the independence of the judiciary. A judge who knowingly or recklessly reproduces words or arguments of others as if they were his own may not be making his own decisions. If discovered, this undermines public confidence that the judiciary can be relied on to think for itself.

Still, we know judicial plagiarism occurs. We also know why. Courts are underfunded and under-staffed; there is far too much work; many judges struggle with an impossible docket. So the temptations to silently lift others’ work can be powerful. Some lifting will be obvious. A claimant will not fail to notice if a judge copies out page after page of the respondent’s pleadings, interspersing phrases like, ‘as we can clearly see’, or ‘ surely the better view is….’ But unacknowledged material that a clerk, or judge, copies without attribution from sources on Westlaw or Google is harder to spot, and can silently infiltrate judicial decisions.

This is why we should be concerned by reports of plagiarism on the part of Trump’s nominee to the US Supreme Court. Judge Neil Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia , has been shown to contain passages and descriptions offered, without citation or acknowledgement, as if they were his own, but which were taken from other authors. That book was in turn based on Gorsuch’s 2004 thesis, submitted for a degree at the law school where I teach. It can only be a matter of time before someone downloads the thesis from the Oxford University Research Archive, to see whether it also contained the passages impugned in the press reports on his book.

If it did, and if Gorsuch were still an Oxford law student, he would be subject to the jurisdiction of University, which unambiguously prohibits plagiarism. It does not matter whether silently copying others’ work is intentional or not; it does not matter whether it is done with the tolerance of those copied; it does not matter whether the passages copied are central to an argument or peripheral. At Oxford, as at most other universities, the wrong is in the misrepresentation. It is an offence of academic dishonesty.

There is, of course, an important question of degree to attend to. There is much worse plagiarism around, even in our universities. And plagiarism in Gorsuch’s book has only been alleged in a few passages, though one of them is fairly extensive. But why is there any at all? These passages seem to have survived an awful lot of scrutiny. In writing a thesis, submitting it for examination, revising it for publication, responding to editorial comments, and correcting texts and proofs there are many opportunities to spot, and correct, honest mistakes or omissions. Indeed, it is not too late to do so even now. So why the silence from Gorsuch and all the loud denials from his apologists?

Here at Oxford, our chief disciplinary officers, the Proctors, do not merely have a reactive role. They have broad powers they must use, not only to enforce our regulations, but to prevent future breaches of them. Why is this important? Gorsuch is no longer a member of Oxford University, so the Proctors have no enforcement jurisdiction over him. But they can and must act to prevent misconduct on the part of current students or faculty.

They should be concerned, then, that Gorsuch’s former Oxford supervisor has provided a statement to the ‘Gorsuch team’ denying any plagiarism in the book:

Having reviewed the examples provided by BuzzFeed News to the Gorsuch team, the professor who supervised Gorsuch dissertation, Emeritus Professor John Finnis of Oxford University, provided a statement to the Gorsuch team, concluding, “[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

This opinion has been widely republished and read, not only by the politicians for whom it was written, but by law students around the world. And this opinion, coming from such an influential scholar, sends the wrong message to young lawyers and scholars.

If by ‘the field of study in which [Gorsuch] and I work,’ Professor Finnis means university research in law or legal philosophy, then his claim is unfounded. Oxford University’s regulations and guidance to students, and years of interpretation of them by the Proctors and others, put this beyond doubt. But perhaps Finnis means that lower standards of integrity apply to law books than to law theses? I do not think that is true either; but it is in any case it is the standards of our University that our students need to comply with, now and in the future.

For my own part, if ever I encountered plagiarism in work by one of my own students I would insist they revise their thesis to include full acknowledgement and citation, using it as a ‘teaching moment’ to explain why it is critical to get this right, especially for lawyers. Legal citation is, as they say, not exactly rocket science: misattributions or non-attributions, if not accidental, suggest a cheater seeking to gain advantage from the work of others, or someone who has contempt for academic culture.

Good judges are sensitive to the further issues at stake. In a British Columbia appeal against a trial judge’s decision that lifted wholesale from one the parties’ submissions, Mr Justice Smith wrote,

Trial judges are busy, and there can be cases… where a party’s submissions so accurately reflect the trial judge’s reasoning that nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words. However, judges who are tempted to prepare reasons for judgment in this way should be acutely aware they may create a perception that they did not reach their decisions independently. Such a perception would tend to undermine public confidence in the impartiality and independence of the judiciary generally and would bring the administration of justice into disrepute:

Of course, an academic book or article is not a party’s submission, but for a judge to rely on it without citation would raise similar worries. Indeed, that case would be worse for, as I mentioned above, judicial plagiarism of that sort will be a lot harder for the parties and others to detect. Given that it can always be avoided by a mere footnote–by a moment’s attention–failure to provide one is wrong. That is why we demand it of our students, our judges, and ourselves.

When writing as an academic, Neil Gorsuch did not have a trial judge’s excuse of the extraordinary pressures of work. He was not copying from submissions others had read, but from authors most readers would not even know. With the leisure of the ivory tower, and with no one but scholars depending on his writing, Gorsuch failed an easy, elementary test we demand of every student: acknowledge all your sources–every single one–truthfully and fully. How should we expect him to behave when the stakes, and temptations, are higher?

Thank you for this. I just wonder about one point: Is it really true that the University loses all of its jurisdiction, meaning it could not even revoke the degree in a serious case of plagiarism? Other universities have done so.

Thanks for these thoughtful comments, and for the link to the thesis. A cursory search of the thesis shows that it contains at least some of the same plagiarized passages — it contains verbatim the problematic paragraph about esophageal atresia and tracheoesophageal fistula (on p. 456). The downloadable PDF is searchable, so I assume it would be easy to find the other passages, though I haven’t done it.

Though I also think that care should be exercised in blaming one with “dishonesty”. As a doctoral student, more than once I have found a passage in a “saved for later” document or folder which seemed to be mine but turned out to be someone else’s (and vice versa). Being sloppy is certainly a terrible vice but it doesn’t and shouldn’t carry the heavy weight that an accusation of dishonesty carries. Motive and intentions certainly play a role here….

I agree that motive and intentions play a role. You describe a case where the unattributed copying would be either accidental or negligent. The first would not sustain a charge of plagiarism at Oxford; the second might, if the negligence were gross. On the facts here, the copying appears to me either intentional or reckless. Moreover, as I say in the post, if it really was negligent, one would suppose that Gorsuch would have been the first to want to correct it as soon as it was pointed out. Perhaps his handlers have told him, and his apologists, to ignore and deny? In any event, his continued silence is disgraceful from one of our former law students.

In any event ‘intentional’ is a tricky term in law, so thanks for your clarification.

Is there any chance the degree can be revoked? I saw Germany has revoked doctorates for plagiarizing politicians. It seems to me like something Oxford might consider. It sounds like even now a full study of the dissertation has not been conducted.

I am not sure, and not sure whether the plagiarism in this case would warrant that. I do think it warrants requiring him to acknowledge the suppressed source and deposit a new copy doing so in the Library. First, someone will need to go through the thesis version with care. It may be cleaner, or worse, than the published version.

This uses a display scheme that’s evolved since 2010, helps make potential plagiarism and editing more obvious.
Blue = in-order, identical words, in this case *82%* of Gorsuch’s, with line breaks to align them
Yellow = trivial edits
Green = obvious moves
White = new text, paraphrase, here, not very different

Pink (applied to antecedent text) were words changed in interesting ways.
I should have marked “Mongolian” in pink, as it was often still used in 1980s, but no longer acceptable by time of Gorsuch dissertation in 2004.

Gorsuch copied most of text from Kuzma, citing a ruling *sealed* since 1982, and then edited out words that might have offered sympathy for viewpoint opposite that in his dissertation.

[…] moral views, or by his legal interventions on the side of prejudice and superstition, or by his disowning Oxford’s standards of academic integrity (when breached by students who share his views). What could have triggered the ludicrous new […]